Towards the Origins of the Diffuse Model of Constitutional Control

The article is devoted to the study of the historical roots of the diffuse model of constitutional review, primarily the practice of British courts of the 17th—18th centuries and the activities of Judge E. Coke. In the course of resolving a number of cases of that time, he put forward principles that later, in the colonial and postcolonial periods of North American history, began to be widely used by local courts and which can be considered to a certain extent as an archetype of the diffuse model. This issue is considered through the analysis of the basic principles and norms that are derived both in the early judicial decisions of E. Coke and in the decisions on the Bonham and Rawls cases. In addition, special attention is paid to the analysis of the process of confrontation between two basic principles — the supremacy of common law and reason over parliamentary acts and, conversely, the supremacy of parliament, which ended with the predominance of the latter. The main patterns of perception of the idea of the supremacy of common law and reason in American judicial practice before and in the first years of the Declaration of Independence of the United States in 1776 are also considered. The article examines the main stages in the development of the diffuse model, in particular, through the perception and application by the courts of the principle of the supremacy of natural law, English common law and colonial charters over acts of local authorities. The main result of the study is the confirmation of the conclusion that the history of the formation of the institution of constitutional review in the United States is to some extent similar to other countries that were former colonies of the British Empire, the constitutions of which do not contain clearly expressed provisions on constitutional review. The precedents of the North American courts of the late 17th — early and mid-18th centuries became the harbingers of the case “Marbury v. Madison”, the date of adoption of which is recognized by many as the beginning of the era of judicial constitutionalism and the formation of the first model of constitutional review.